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AMSA November 2001 Regulatory Update

Member Pipeline - Regulatory - Update (November 2001)

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To: Members, Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: November 7, 2001

AMSA's National Office is pleased to provide you with the Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to November 7, 2001. A Regulatory Digest of activities currently tracked by AMSA can be found on AMSA's web site at www.amsa-cleanwater.org. If you have any questions or comments, please contact the AMSA National Office, 202/833-AMSA or info@amsa-cleanwater.org.

Stay Connected with AMSA's Regulatory Digest - Now on the Web!
Stay informed between issues of AMSA's Regulatory Update with the Regulatory Digest. The AMSA Regulatory Digest provides both up-to-date and historic information on regulatory and policy developments affecting the AMSA membership. The listings include regulatory actions receiving considerable attention or of particular importance the wastewater community. Additional information on any of the regulatory or policy developments listed in the Update can be obtained by calling AMSA's National Office at 202/833-2672. To increase the effectiveness of this very important resource, AMSA has moved the Regulatory Digest to the web. Bookmark this resource today! The Regulatory Digest can be found at: http://www.amsa-cleanwater.org/private/reg_index.cfm.

 

Water Quality

EPA Proposes Beneficial Revisions to Method 1631 for Mercury
On October 9, 2001, EPA proposed revisions to EPA Method 1631, Revision C: Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence Spectrometry, which measures mercury in aqueous samples. AMSA supports the proposed modifications, which require the use of certain "clean techniques" and quality control measures when using the test and would fulfill, in part, a Settlement Agreement designed to resolve litigation challenging an earlier EPA rulemaking. The petitioners argued that results produced by laboratories using Method 1631 would not be reliable unless the optional clean techniques and quality control provisions were required. The rulemaking also proposes to make the method easier to use and more consistent with other approved methods and current practices. EPA is accepting comments on the proposed revisions until December 10, 2001. AMSA is evaluating the need to prepare comments. If your agency is preparing comments or if you would like to contribute to AMSA's comment preparation efforts, please contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Comments on Proposed Test Methods for Bacteria
On October 29, AMSA submitted comments on EPA's August 30, 2001 proposal to add to the list of Agency-approved test methods several analytical test procedures for enumerating the bacteria, Escherichia coli (E. coli) and enterococci, and the protozoans, cryptosporidium and giardia in receiving waters. AMSA's comments on the proposed methods highlight the fact that the bacteria procedures are only approved for ambient water monitoring and not for other matrices, such as publicly owned treatment works (POTW) effluent. Without approved methods for testing effluent for these bacterial indicators, POTWs and regulators will have difficulty assessing effluent quality with respect to EPA's water quality criteria for bacteria. Although EPA has no set time frame for finalizing the methods and procedures, AMSA expects final action by EPA in Summer 2002. AMSA's comments can be found at http://www.amsa-cleanwater.org/private/legreg/outreach/10-29-01ecolicomments.pdf

AMSA Prepares Comments on Estuarine and Coastal Water Nutrient Guidance
On October 10, EPA announced the availability of the Estuarine and Coastal Marine Waters Nutrient Criteria Technical Guidance Manual for review and comment. The guidance manual is the third document issued by EPA detailing the implementation of the National Nutrient Strategy. Other guidance documents have been developed for rivers and streams, and lakes and reservoirs, and additional guidance is being developed for wetlands. As water quality criteria, and subsequent state water quality standards are developed, waterbodies will be listed as impaired for nutrients. The resulting total maximum daily loads (TMDLs) and waste load allocations (WLAs) will significantly impact POTWs. AMSA's efforts are centered on ensuring that the nutrient criteria documents are based on sound science.

The new estuarine and coastal waters document lays out EPA's approach for establishing nutrient criteria for these environments and relies heavily upon a reference condition approach for criteria derivation. Comments on the document are due by December 10. AMSA and its contractor are preparing a scientific review of EPA's approach to establishing nutrient criteria detailed in the document, and developing a targeted set of comments to underscore the complexities of implementing national nutrient criteria.

International Wastewater Standards to be Compiled
In early October, the International Standards Organization (ISO) voted to pursue developing international protocols for the service activities relating to sewerage and drinking water supply. American National Standards Institute (ANSI), and three other countries' national standards agencies had opposed the protocol development. In response to the decision and the noted opposition by the U.S., United Kingdom, Germany and the Neatherlands, ISO's Technical Management Board has agreed to form a Technical Advisory Group (TAG) which will meet to develop a business plan to address the French Proposal. AMSA will pursue representation on the TAG in coordination with the Water Environment Federation.

ISO's vote comes despite a July 2001 AMSA letter of concern to ANSI. AMSA's letter noted that the standards posed in the French proposal may not be an appropriate starting point for international standards and may conflict with the numerous domestic activities well underway to address wastewater facility management, including asset management programs and environmental management system (EMS) development. See AMSA's letter and the French proposal at: http://www.amsa-cleanwater.org/private/legreg/outreach/7-23-01ansiisoetter.pdf.

 

Wet Weather

AMSA Meets with Assistant Administrator Mehan on SSO and Blending Issues
AMSA recently met with Assistant Administrator for Water Tracy Mehan to discuss the status and outlook for the sanitary sewer overflow (SSO) rule and the blending policy. The SSO proposal, which was awaiting publication in the Federal Register at the time of President Bush’s inauguration, was withdrawn for further review in January 2001, and its status has remained unchanged since then. During this interim period, AMSA sent several letters to EPA detailing our position (copies of AMSA’s letters can be found on the web at http://www.amsa-cleanwater.org/private/legreg/outreach/ssofinal.pdf, and http://www.amsa-cleanwater.org/private/legreg/outreach/060801whitmanletter.pdf). Prior to AMSA’s meeting with Assistant Administrator Mehan, the National Office had learned that some EPA staff were leaning towards dropping the federal rule concept due to the perceived failure of the previous rulemaking attempts, and instead issuing guidance to permit writers and allowing the program to continue as an enforcement-driven initiative. AMSA would strongly oppose a "no rule" approach. AMSA has for many years vocally supported the need for a rule as indispensable to controlling SSOs. At the meeting with Assistant Administrator Mehan in early November, AMSA emphasized the importance to the membership of a federal rule, outlined the critical shortcomings of the current draft rule language, and recommended reasonable alternatives that could be supported by municipalities. AMSA expects that a decision on a path forward for the SSO proposal will be made soon.

AMSA also discussed with Mehan the prospects for issuing a final policy statement and/or guidance on blending of peak wet weather flows. AMSA believes there is a significant need for a consistent approach to regulating blending as many states and EPA Regions interpret the Clean Water Act regulations differently with respect to this issue. In addition, the Office of Enforcement & Compliance Assurance (OECA) has repeatedly indicated that they believe blending to be inconsistent with the bypass regulations. However, the Office of Water (OW) has proposed an approach which would enable blending to be authorized in NPDES permits as long as certain conditions are met, including compliance with secondary treatment standards. Following a series of OW letters to Congress in March 2001 clarifying the Agency’s current approach to blending, EPA has been further studying the issue and developing guidance. During the Mehan meeting, AMSA reemphasized the need for a final policy statement and guidance on blending. For further information on blending and SSOs, please contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

 

Pretreatment & Hazardous Waste

AMSA to Comment on Draft Local Limits Guidance
In August, EPA released a draft of the newly revised local pretreatment limits guidance. AMSA was pleased with the level and quality of information provided by EPA. However, there remain several issues of concern that AMSA will address in comments to EPA. AMSA has assembled an ad-hoc workgroup from the Pretreatment & Hazardous Waste Committee to assemble the comments which will be submitted to EPA by the November 16 deadline. EPA estimates that the final guidance will be published early next year. If you are interested in working on AMSA’s comments, contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org.

EPA Calls for Additional Participants in Project XL
On October 3, EPA published in the Federal Register a call for 10 additional wastewater treatment agencies to participate in the Pretreatment Project eXcellence and Leadership (Project XL) Program. The agencies who volunteer to participate in this program are allowed to modify their pretreatment programs and implement new local limits as established by the program. The rule and program is intended to provide greater flexibility that will enable these test programs to move forward. Project XL was originally announced in 1998. Several AMSA members have participated, including the Narragansett Bay Commission, RI; Louisville and Jefferson County Metropolitan Sewer District, KY; Metropolitan Water Reclamation District of Greater Chicago, IL and the City of Albuquerque, NM. Agencies who are interested in participating in this project are asked to contact Brian Frazer at EPA, 202/564-0599, or visit Project XL’s web site at http://www.epa.gov/projectxl/.

 

Legal Issues

AMSA Wins Key Case, Court Upholds Permit Shield Protection
Handing AMSA and publicly owned treatment works (POTWs) across the country a major legal victory, the United States Court of Appeals for the Fourth Circuit endorsed the protections provided by the Clean Water Act’s (CWA) permit shield. In Piney Run Preservation Association v. County Commissioners of Carroll County, Maryland, No. 00-1283 (4th Cir. October 10, 2001), the Court ruled that the CWA’s permit shield protected Carroll County (County) from liability for discharging a pollutant – in this case, heat – not specifically listed in the County’s National Pollutant Discharge Elimination System (NPDES) permit. The Court found the County did not violate the CWA because it had disclosed its effluent temperature to the Maryland Department of the Environment. The decision is of tremendous value to POTWs facing similar permitting challenges from citizen groups in their jurisdictions, while creating binding precedent in 4th Circuit states and persuasive precedent nationwide. AMSA and the Water Environment Federation filed a joint amicus curiae brief in August 2000, successfully arguing that the County should not be liable for unlisted pollutants under the CWA’s permit shield. AMSA Legal Alert 01-8, provides additional information on the decision. The court’s opinion can be accessed via AMSA’s web site at http://www.amsa-cleanwater.org/private/littrack/10-12-01courtopinion.pdf.

AMSA Intervenes in Lawsuits to Protect Sewage Sludge Incinerators
On October 26, AMSA moved to intervene in two Clean Air Act (CAA) lawsuits involving sewage sludge incinerators (SSIs). The lawsuits were initiated this summer by the Sierra Club in the U.S. District Court for the District of Columbia. The litigation seeks to require EPA to promulgate certain CAA standards which were due under that statute by November 15, 2000. The suit filed July 20, 2001 seeks performance standards and other requirements under CAA §129 for "other solid waste incinerators" (OSWI), including SSIs. The suit filed July 16, 2001 seeks technology-based maximum achievable control technology (MACT) standards under CAA §112 for a number of industrial source categories, including SSIs. AMSA’s long-standing position has been that SSI regulation under CAA §129 and §112 is both unnecessary and unsupported by the statute. Further, SSIs already are subject to significant air pollution emission limits, monitoring, and recordkeeping requirements under both the CAA and the Clean Water Act (CWA). The outcome of settlement discussions and other activity in both cases will have a direct impact on AMSA member agencies who rely upon incineration to manage their biosolids. AMSA will continue to report on developments in these cases. For more information, please contact Alexandra Dunn, AMSA’s General Counsel, at 202/533-1803 or adunn@amsa-cleanwater.org.

 

Total Maximum Daily Loads

EPA Issues Rule Extending TMDL Rule Effective Date and Listing Deadline
On October 18, EPA published a final rule (66 Fed. Reg. 53044) which extends until April 13, 2003 the effective date of the July 13, 2000 total maximum daily load (TMDL) rule. The purpose of the 18-month delay is to allow EPA to evaluate the recent National Research Council (NRC) review of the program and to conduct a stakeholder dialogue on methods for improving the TMDL program. Until April 2003, the TMDL program will proceed under the existing regulations promulgated in 1992. Under the 18-month delay, EPA plans to make revisions to the July 2000 rule, which was the subject of numerous Congressional riders and high profile lawsuits. EPA expects that a proposed rule will be issued in the spring of 2002. AMSA has been supportive of EPA’s rule delay (see September 10 letter at: ) and has put together a TMDL White Paper which outlines the wastewater treatment community’s recommendations for a new rule (see AMSA TMDL White Paper at: http://www.amsa-cleanwater.org/advocacy/7-18-01tmdlwhitepaper.pdf).

The October 18 rule also pushes back the deadline for states to submit their section 303(d) lists of impaired waters from April 1, 2002 to October 1, 2002. The purpose of the listing extension is to allow states to take advantage of forthcoming guidance on the integration of the section 305(b) report and 303(d) list. AMSA’s September 10 letter to EPA was supportive of this extension, and had even supported a longer delay to ensure consistency with the NRC findings and to improve data collection and assessment methodologies.

EPA Briefs AMSA on Potential TMDL Rule Changes
EPA’s Chuck Sutfin, Director of Assessment & Watershed Division, presented a briefing to AMSA on November 6 at the National Office in Washington, DC. At the briefing, EPA previewed possible rule revisions, discussed several key listing documents that will be released in the next month, and provided participating members with an opportunity to provide feedback. See EPA’s presentation at http://www.amsa-cleanwater.org/private/regupdates/nov01/Sutfin110601_files/frame.htm. Among the areas that EPA identified for rule revision are the section 303(d) listing process, implementation plans, reasonable assurance, time frames for implementation, and EPA’s TMDL and permitting oversight role. Some of the specific rule changes that are being considered include:

  • Implementation plans – EPA is considering the removal of implementation plans from the TMDL process, and replacing it with more specific requirements in the section 303(e) Continuing Planning Process (CPP) for nonpoint sources. Under the possible revision, states would be required to demonstrate how load allocations (LAs) will be achieved and prove that they are technically feasible. EPA is indicating that further discussion is needed on assurances that can be built into the CPP process for the actual implementation of nonpoint source reductions.
  • Interim permitting – EPA is exploring interim permitting options for the issuance of new or modified permits prior to the completion of a TMDL. Where point source contributions to impairment are considered de minimus, EPA may provide the permit writer with flexibility to consider presumed nonpoint source reductions when setting limits in NPDES permits. EPA may also specify that the TMDL and water quality-based effluent limit (WQBEL) procedures are collapsed into one approach.
  • Phased TMDLs – EPA is exploring the potential for providing states with greater flexibility to modify waste load allocations (WLAs) and LAs after Agency approval of the TMDL, as long as the total load reduction remains the same.
  • Listing – EPA is taking active steps through guidance (see story below) to integrate the section 303(d) listing and 305(b) assessment requirements. One of the most distinctive differences from previous tracking requirements will be a consolidated list of five categories to measure the status of each waterbody.

AMSA will continue to track potential TMDL rule revisions in the coming months prior to proposal and provide the members with opportunities to influence the decisionmaking process.

AMSA Participates in TMDL Listening Sessions
As part of its effort to revise the July 2000 TMDL rule, EPA is conducting five Listening Sessions around the country over the next few months on a variety of related themes. The first and second Listening Sessions, focusing on nonpoint source control issues, and the scope and content of TMDLs, were held in late October and early November. Several AMSA members participated in these sessions, and submitted copies of the AMSA TMDL White Paper for the record. AMSA members will also be participating in the remaining three sessions:

  • Listening Session # 3 - EPA’s Role, the Pace/Schedule for Development of TMDLs, and NPDES Permitting Pre- and Post-TMDL: Atlanta, GA (November 7 - 8);
  • Listening Session # 4 - Public TMDL Listening Session: Oklahoma City, OK (November 15 - 16); and
  • Listening Session # 5 - All Issues: Washington, DC (December 11).

The National Office and AMSA’s Water Quality Committee are developing key points for members to make in each of the Listening Sessions. Please contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org for more information, or download meeting information from EPA’s web site at http://www.epa.gov/owow/tmdl/meetings/.

Apart from the Listening Sessions, EPA is also briefing key interest groups on potential revisions to the TMDL rule. EPA discussed its recent TMDL activities at AMSA’s recent Legal & Regulatory Hot Topics Breakfast on October 16 in Atlanta, GA at WEFTEC.

EPA to Release Key TMDL Guidance Documents in November
EPA is set to issue two draft guidance documents which address longstanding issues on how to integrate the 303(d) listing and 305(b) assessment procedures, and how to establish more consistent and rigorous monitoring and assessment protocols. AMSA has raised concerns in the past about the problems inherent in requiring states to track receiving water health in two distinct programs, including the lack of consistent protocols for monitoring and assessment. AMSA will distribute both documents to the membership as soon as they are released.

The purpose of the first document, the Consolidated Assessment and Listing Methodology (CALM), is to provide states with best practices for water quality monitoring and assessments. Best practices may include minimum elements of state monitoring programs, methodologies for assessing water quality standards (WQS) attainment, and methodologies for identifying causes and sources of water quality impairment. AMSA provided comments on an early CALM outline on December 14, 2000 and participated in several public meetings.

A related guidance document, the Integrated Monitoring and Assessment Report Guidance, will provide states with recommended categories for listings and minimum information required for each water body, or "assessment unit". According to EPA, the following five list categories should be used by the states (see http://www.amsa-cleanwater.org/private/regupdates/nov01/Sutfin110601_files/frame.htm):

  1. Attaining all standards and no standard is threatened;
  2. Attaining some standards, no standard is threatened, and insufficient or no data and information available for remaining standards;
  3. Insufficient or no data and information to determine if any standard is impaired;
  4. Impaired or threatened for one or more standards but not needing a TMDL; and
  5. Impaired or threatened for one or more standards by a pollutant(s) and requiring a TMDL.

This document also suggests certain minimum tracking data for each "assessment unit" (AU). EPA will recommend the following: AU name, AU location based on National Hydrography Dataset, AU type (river, lake, estuary, etc), observed environmental effects, pollutants causing impairments, sources of pollutants, TMDL schedules based on priority ranking, and monitoring schedules.

 

Nominations/Appointments

Assistant Administrator for EPA Office of Research and Development Nominated
President Bush nominated J. Paul Gilman, to head EPA’s Office of Research and Development on October 19. Gilman is currently the director of Research and Integration Policy Planning for Celera Genomics, Inc. in Rockville, MD and served during the first Bush Administration as Associate White House Budget Director with oversight for EPA, the department of Energy and Interior and other agencies. If confirmed by the Senate, Gilman would manage an office dedicated to the conduct of cutting-edge research and the sound use of science and technology to fulfill EPA's mission to protect human health and safeguard the environment. The office has approximately 2,000 employees at 13 research facilities around the country. Gilman holds B.A., M.A. and Ph.D. degrees from Johns Hopkins University. His doctorate degree was in ecology and evolutionary biology.

Hearing Held for Nominee for Assistant Administrator for EPA Office of Environmental Information
Kimberly Nelson, President Bush’s nominee for Assistant Administrator for the Office of Environmental Information at the U.S. Environmental Protection Agency (EPA) testified before the Senate Environment and Public Works Committee on October 17. The Office is responsible for the security and reliability of the information infrastructure at EPA and is wholly responsible for the Toxic Release Inventory database. Nelson currently serves as the Executive Deputy Secretary for the Pennsylvania Department of Environmental Protection (DEP) but has worked as chief information officer for the state DEP and helped establish the DEP’s Office of Information Technology. She has a bachelors degree for Shippensburg University and a masters in public administration from the University of Pennsylvania.

Administrator Whitman Names Three More Regional Administrators
U.S. Environmental Protection Agency (EPA) Administrator Christie Whitman has appointed Jane M. Kenny as the new regional administrator of EPA's Region II, James (Jimmy) I. Palmer Jr., as the new regional administrator in Region IV, and Wayne Nastri as the new regional administrator in Region IX. Below is a brief biography of each administrator.

Jane M Kenny, Region II (New York, New Jersey, Puerto Rico and Virgin Islands)

Prior to her appointment Jane Kenny served in New Jersey as commissioner for the Department of Community Affairs and before that worked as Chief of Policy and Planning in the Office of the Governor under then Governor Christine Todd Whitman. Before joining Whitman's office, Kenny worked as the Vice President of Corporate and Community Affairs for Beneficial Management Corporation. She also served as the Cabinet Secretary for Governor Thomas Kean. Kenny helped create the nation's first state program to build "sustainable" affordable housing that meets environmental and energy standards, an initiative that won a Clean Air Excellence Award from the EPA in 2000. Kenny also helped develop a brownfields initiative to clean up and redevelop abandoned industrial sites. Commissioner Kenny has served as chairman of the state's Brownfields Task Force and the New Jersey Meadowlands Commission, which, under Kenny's leadership, has preserved more than 1,700 acres of wetlands and uplands as open space, according to Whitman's office. Kenny holds a B.A. from Trinity College and a M.A. from Rutgers University.

James (Jimmy) I. Palmer Jr., Region IV (Georgia, Kentucky, Tennessee, North Carolina, South Carolina, Alabama, Mississippi and Florida)

Prior to his appointment, Jimmy Palmer practiced law as a member of Butler, Snow, O'Mara, Stevens and Cannada PLLC, where he specialized in environmental, natural resources and energy law. Prior to his law practice, Palmer served for 12 years as the executive director of the Mississippi Department of Environmental Quality (DEQ) through the administrations of two governors where he participated in various EPA efforts including the Policy Review Board and Management Committee for the agency's Gulf of Mexico Program, the Mississippi River/Gulf of Mexico Watershed Nutrient Task Force and the Small Towns Task Force. Palmer also served as executive director in the Office of General Services, part of the Office of the Governor in Mississippi. Palmer holds a J.D. from the University of Mississippi and a B.S. in civil engineering from Mississippi State University.

Wayne Nastri, Region IX (Arizona, California, Nevada, Hawaii, U.S. territories of Guam and American Samoa, and the Commonwealth of the Northern Mariana Islands, and other unincorporated U.S. Pacific possessions)

Prior to his appointment, Wayne Nastri was President of Environmental Mediation Inc., an environmental consulting firm, which he founded in 1995 in Newport Beach, CA. Prior to that he directed the California office of The Jefferson Group, a government and public affairs firm. Nastri has served on various EPA and California advisory Committees and has served as the pro bono Legislative Director for the California Environmental Business Council. Nastri was also Editor-in-Chief for the National Association of Environmental Professionals' Environmental News.